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Marshall v. Martinson

February 15, 1973

MARSHALL, APPELLANT,
v.
MARTINSON ET AL, RESPONDENTS



Appeal from Circuit Court, Multnomah County. William W. Wells, Judge.

William F. Schulte, Portland, argued the cause for appellant. With him on the briefs were Van Natta & Petersen, St. Helens.

George M. Joseph, Portland, argued the cause for respondents. With him on the brief were Bemis, Breathouwer & Joseph, Portland.

Holman, Justice. O'Connell, Chief Justice, and McAllister, Denecke, Tongue and Bryson, Justices.

Holman

Plaintiff brought an action for damages which resulted from personal injuries suffered in a two-vehicle accident. Judgment was entered pursuant to a jury verdict in favor of defendants and plaintiff appealed.

The accident occurred after dark on the Columbia River Highway near Bonneville. Both vehicles were traveling west. At the scene of the accident the highway is composed of two lanes each for eastbound and westbound traffic. The eastbound and westbound lanes are widely separated by tracks of the Union Pacific Railroad.

The pickup truck in which plaintiff was riding as a passenger was traveling in the northern lane of westbound traffic and was overtaken by an automobile in the southern lane, which was being operated by defendant Martinson. Defendant Bailey, who owned the automobile, was riding as a passenger.

The issue is which of the two lanes of traffic was the site of the collision. The driver of each vehicle claims he was in his own lane of traffic when the right front side of defendants' vehicle came in contact with the left front side of plaintiff's pickup truck. Plaintiff contends Martinson lost control of his vehicle when it glanced off the left-hand, or south, guardrail at a point approximately 1,180 feet east of the scene of the accident. Much trial time was taken up attempting to prove or to disprove whether it was defendants' vehicle which had left a mark on the guardrail at that point.

It is first contended by plaintiff that, because Martinson failed to exercise a proper lookout for plaintiff's vehicle as he overtook and passed it, the trial court erred in not ruling that Martinson was negligent as a matter of law. Plaintiff bases her assertion that Martinson was not keeping a proper lookout on the testimony given by Martinson that he was concentrating his vision on the guardrail to his left and was not looking at plaintiff's pickup truck at the

time the two vehicles came together. Martinson also testified as follows:

"Q. And could you tell us where, in terms of time or distance, from the point where the two cars collided you began to first ...


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